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Badal Molla Vs. Chemai Mondal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in40Ind.Cas.894
AppellantBadal Molla
RespondentChemai Mondal and ors.
Cases ReferredSrinivasa Aiyangar v. Radhakrishna Pillai
Excerpt:
transfer of property act (iv of 1882), sections 60, 98 - mortgage, anomalous--redemption, clog on. - .....it is not necessary to go into the cases on this point. in the present case, however, the learned judge of the lower appellate court has held that the mortgage is an anomalous mortgage within the meaning of section 98 of the transfer of property act and that, therefore, no right of redemption subsists. i am not prepared, as at present advised, to agree with the view of the learned judge that section 60 of the transfer of property act does not apply to an anomalous mortgage. i am inclined to think that section 60 applies to all mortgages. but be that as it may, the question in this case is whether the learned judge of the lower appellate court was right in coming to the conclusion that the mortgage was an anomalous mortgage. the document before us is stated to be a kat kobala,.....
Judgment:

Fletcher, J.

1. This is an appeal by the plaintiff from a decision of the learned Additional District Judge of the 24-Pergunnahs, dated the 19th January 1915, affirming the decision of the Munsif of the first Court at Alipur. The plaintiff brought the suit for redemption. It is admitted that the plaintiff's predecessor was the mortgagor and the defendant No. 1 was the mortgagee. The equity of redemption has not been foreclosed or put an end to either by the acts of the parties subsequent to the mortgage or by an order of the Court. One would have expected, therefore, that a case for redemption had clearly arisen, because one of the elementary rules of equity is that once a mortgage always a mortgage. The Courts of Equity have always held that a mortgagee should not be allowed to obtain any undue advantage by his mortgage except the amount of the principal, interest and costs due on his mortgage. It is not necessary to go into the cases on this point. In the present case, however, the learned Judge of the lower Appellate Court has held that the mortgage is an anomalous mortgage within the meaning of Section 98 of the Transfer of Property Act and that, therefore, no right of redemption subsists. I am not prepared, as at present advised, to agree with the view of the learned Judge that Section 60 of the Transfer of Property Act does not apply to an anomalous mortgage. I am inclined to think that Section 60 applies to all mortgages. But be that as it may, the question in this case is whether the learned Judge of the lower Appellate Court was right in coming to the conclusion that the mortgage was an anomalous mortgage. The document before us is stated to be a kat kobala, which I am told means a mortgage by way of conditional sale. A mortgage by way of conditional sale is clearly not an anomalous mortgage within the meaning of Section 98 of the Transfer of Property Act. The document itself seems to be an usufructuary mortgage within the definition contained in Section 58(d) of the Transfer of Property Act. In this case, the mortgagee was put into possession to receive the usufruct of the property in lieu of interest and, therefore, in that view the mortgage clearly comes within the meaning of Section 58(d). The contract that, if the mortgagor should fail to pay the rent to the landlord, the mortgagee should be entitled to enforce the kat kobala and that the kat kobala should be treated as a deed of absolute sale obviously is a clog on the equity of redemption. It is not necessary to go into the authorities on this point. They have been cited in the case of Srinivasa Aiyangar v. Radhakrishna Pillai 22 Ind. Cas. 54 : 38 M. 667 : 14 M.L.T. 547 : (1914) M.W.N. 81 : 26 M.L.J. 47. We do not really want an authority that a condition of that nature does not nullify the rest of the deed, namely, that it is a mortgage and further that the mortgage provided that, when the principal money would be paid off in one lump sum, the mortgagee would return the property, The condition of forfeiture or the transaction becoming an absolute sale in the event of the mortgagor failing to pay the rent is clearly void. In that view, the learned Judge of the lower Appellate Court ought to have made an ordinary decree for redemption directing the usual account to be taken of what was due to the mortgagor on the footing of the mortgage security. The present appeal is, therefore, allowed and the case is remanded to the lower Appellate Court for the learned Judge there to take an account of what is due to the mortgagee on the footing of the security bond and upon ascertaining the amount due, he should fix a date within which the money ought to be paid and the redemption made; and on the plaintiff's failure to do that, he should direct that the plaintiff's right to redeem shall be extinguished. In taking the account, the learned Judge will also consider the other mutter raised by the plaintiff, namely, whether the rent was paid out of the additional land made over to the mortgagee. The appellants will get their costs in this Court. The mortgagee will be entitled, according to the ordinary rule in a redemption suit, to add to their security the costs incurred by them in the Courts below.

Smither, J.

2. I agree.


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